Burr & Forman

11.17.2018   |   ACA Intl'l, ATDS, Blog Articles, Consumer Finance Litigation, Reassigned Numbers, TCPA

District Court of Minnesota Finds Calls to a Reassigned Number Did Not Violate the TCPA

In Roark v. Credit One Bank, N.A., No. 16-173 (PAM/ECW), 2018 WL 5921652 (D. Minn. Nov. 13, 2018), the District Court of Minnesota found that calls to a reassigned phone number did not violate the TCPA because the caller’s reliance on the prior owner’s express consent was reasonable.

The plaintiff, Stewart Roark (“Plaintiff”), alleged Credit One Bank, N.A. (“Credit One”) violated the Telephone Consumer Protection Act (“TCPA”) by using an automatic dialer (“ATDS”) to call his cell phone number and left a prerecorded voicemail on his phone without his consent. See generally id. Generally speaking, the TCPA prohibits using an ATDS and/or artificial or prerecorded voices to place a call to a cell phone number without the called party’s prior express consent. See 47 U.S.C. § 227.

Credit One obtained the number at issue in 2013 from one of its customers, “R.B.,” who provided the number when he opened a line of credit with Credit One. Roark, 2018 WL 5921652, at *1. When he provided the number, R.B. also consented to receive calls from Credit One. Id. In 2015, the number was reassigned to Plaintiff, but R.B. never informed Credit One that he had changed his phone number. Id. As a result, Credit One was unaware the number had been reassigned and continued to call it. Id. Credit One also “received four calls from [Plaintiff’s] phone number, although R.B.’s information still populated in the caller I.D.” Id. Additionally, “every time [Plaintiff] connected with a Credit One representative, he hung up.” Id. In December 2016, Plaintiff informed a Credit One representative that he was not a Credit One customer, and Credit One stopped calling the number at issue. Id.

The Federal Communications Commission (“FCC”) has determined that the term “called party” as used in the TCPA is “the current subscriber of the cell number and not the intended recipient of the call.” Id. at *3. In ACA International, 885 F.3d 687 (D.C.C. 2018), the D.C. Circuit Court “invalidated a portion of the FCC ruling that allowed for a one-call ‘safe harbor’ rule for reassigned numbers and ‘set aside the [FCC’s] treatment of reassigned numbers as a whole.'” Roark, 2018 WL 5921652, at *3 (quoting ACA International, 885 F.3d at 708–09). The District of Minnesota, therefore, examined “the reasonableness of the caller’s reliance on a prior number holder’s express consent” to determine whether Credit One violated the TCPA by calling the number at issue after it had been reassigned to Plaintiff.

The court found that R.B. expressly consented to calls from Credit One on the number at issue and R.B.’s consent included consent to receive prerecorded messages. Id. Further, the court determined “Credit One had no reason to know that the phone number had been reassigned because they received no notice from [Plaintiff] and the caller I.D. for the number still populated with R.B.’s information.” Id. Therefore, the court concluded Credit One’s reliance on R.B.’s prior express consent was reasonable and granted summary judgment in favor of Credit One.

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